D’s vessel was chartered to carry a cargo of Cuban sugar in bulk. She loaded some 10000 tonnes at Guayabal. Two bills of lading were issued to the shippers. On April 4th 1979 the vessel set sail for Denmark. On April 13th she encountered heavy weather and on April 14th she started to list to port. Water was found in number three hold and in number 3 port deep tank. The entry of water increased and the vessel was abandoned on April 15th. She sank on April 19th. The consignees of the cargo, C, claimed the full value of the same for non-delivery. D contended that they had satisfied the burden of proof in showing that the contract had become impossible of performance and/or that perils of the sea had operated to cause the loss; it was for C to prove that the loss was caused by unseaworthiness. D further relied on article IV of The Hague Rules and claimed that they were entitled to limit any liability under the Merchant Shipping Acts 1894 to 1958.
Held: that 1) where, as here, the facts disclose that the loss was caused by the concurrent positive effect of an excepted and a non-excepted peril, the carrier remains liable. It does not suffice for the carrier to merely prove under article IV r2 of The Hague rules that a cause of the loss was a peril of the sea; 2) the crack in the port side shell plating was not of itself sufficient to cause the vessel to founder; the vessel was lost due to the corroded bulkhead between lower holes 2 and 3 giving way. The vessel was unseaworthy both in this respect and in that her shell plating was corroded, and such unseaworthiness existed at the commencement of the voyage; 3) the unseaworthiness was not latent and nor was it incapable of discovery by due diligence, which in the event was not exercised. D was therefore liable; 4) on the facts D had manifestly not discharged the burden of proving the absence of fault or privity, and could not be there limit liability.
Nothing in the Hague Rules alters the status of a contract of carriage by sea as a species of bailment for reward on terms. Hobhouse J said: ‘The relationship between the present parties is contractual. It follows . . that the question of legal burden of proof has ultimately to be decided by construing the contract between them. . . In ascertaining the effect of the contract one must take into account the nature of the contract. The contract here is a contract in a bill of lading; it is a contract of carriage – that is to say, a species of a contract of bailment.’
Hobhouse J
[1983] 2 Lloyd’s Rep 210
England and Wales
Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .
Lists of cited by and citing cases may be incomplete.
Transport
Updated: 30 November 2021; Ref: scu.670135